[Editor’s Note: In this mini-symposium, Andrea Pin of the University of Padua and Diletta Tega of the University of Bologna comment on Judgment No. 49/2015 (March 26, 2015) of the Italian Constitutional Court.]

A Jurisprudence to Handle with Care: The European Court of Human Rights’ Unsettled Case Law, its Authority, and its Future, According to the Italian Constitutional Court

With its recent judgment no. 49, 2015, the Italian Constitutional Court (CC) has narrowed the domestic impact of the European Court of Human Rights’ (ECtHR) ever-changing case law and indirectly tried to put the brakes on the ECtHR’s evolutionary jurisprudence itself. In a nutshell, the CC is saying that the ECtHR’s interpretation of the European Convention of Human Rights (Convention) counts only when it is well settled.

The Italian Constitution commands that the domestic legislature respect the European Convention of Human Rights, and in 2007 the CC explained that the meaning of the Convention is what the ECtHR says it to be. If a piece of domestic legislation conflicts with the ECtHR’s interpretation of the Convention, it can be challenged before the CC as violating the Constitution. The CC also clarified that it will strike down the domestic piece of legislation unless the ECtHR’s relevant case law conflicts with the Italian Constitution; in this case, the CC won’t apply the ECtHR’s case law at the domestic level. Even in such a case, however, the CC never will propose an alternative interpretation of the Convention: it will accept the ECtHR’s interpretation as it is, even though it won’t let it prevail over the domestic jurisdiction.

Since the ECtHR famously understands its Convention as a “living instrument,” it never stops developing new interpretations of it, drawing from legal trends in supranational and national courts inside and outside Europe. As the ECtHR doesn’t follow any stare decisis doctrine, precedents are not firm. This means that new interpretations of the Convention can keep springing out of the ECtHR and repeatedly be used to challenge the same Italian legal provisions.

As a matter of fact, Italian courts have utilized the ECtHR’s new interpretations of the Convention to bring cases to the CC’s attention in order to have the domestic legislation quashed.

This phenomenon has become sizeable and even alarming in the context of the CC’s workload: the same legislation can be challenged multiple times in few years; and, since the CC doesn’t control its docket, it cannot clear its caseload of superfluous challenges that the ECtHR’s more recent case law on the same subject already may have supplanted.

It has happened before: a decision rendered by a ECtHR Chamber prompted an Italian lower court to challenge a piece of legislation; by the time the CC took on the case, the ECtHR Grand Chamber had overturned the first ECtHR decision on appeal, changing the landscape dramatically and erasing the conflict between Italian law and the Conventional rule that had been handed down by the ECtHR’s previous judgment.

With its judgment no. 49 of 2015, the CC takes the opportunity to clarify what role Italian judges must accord to the ECtHR’s ever-changing jurisprudence. And this approach is so new that it could prompt both a dramatic decrease in lower courts’ challenges of Italian law and a reflection among ECtHR’s judges about the extreme rapidity with which they change their case law. But the CC goes beyond these changes: it proposes a new understanding of Conventional interpretation, which should combine the ECtHR’s reflexivity with more domestic court activism.

The CC makes it clear that domestic judges must rely on only, and conform their interpretation of the Convention to, the ECtHR’s “well established case law.” In fields where its jurisprudence is unsettled, Italian courts shouldn’t follow it.

The CC lists which features of the ECtHR’s jurisprudence should discourage domestic judges from accepting it as the correct interpretation of the Convention:

A high degree of jurisdictional creativity, which implies that the new principle is not well settled in case law;

Inner conflicts within the ECtHR’s jurisprudence;

Its promulgation by a Chamber, and not by the Grand Chamber itself;

The ECtHR judgment’s misunderstanding of the Italian legal context; and

The existence of dissenting opinions attached to the relevant case law.

This last point is particularly interesting. In Lawrence v. Texas, the U.S. Supreme Court backed its majority opinion by famously quoting the ECtHR’s Dudgeon v. United Kingdom opinion. But Dudgeon received no less than four dissenting opinions among the ECtHR’s judges (plus one dissenting in part), hence the CC wouldn’t have used Dudgeon authoritatively.

The CC depicts the ECtHR’s case law as essentially fluid, pluralistic, and even unstable. But what sounds the most intriguing but problematic is the fact that the ECtHR is supposed to continuously reinterpret the Convention in order to detect violations of it; and, if a violation is found, then a state will be condemned.

If, as the CC says, some interpretations given by the ECtHR are not authoritative enough to impose new interpretations of the Convention at the domestic level, how can they ground state condemnations at the ECtHR level? The CC’s reasoning sounds like a hidden criticism of the ECtHR’s vacillating case law in itself. After all, that’s what prompted a backlash in the United Kingdom after Vinter v. United Kingdom, which was so creative that it made the British Prime Minister David Cameron warn that his country could leave the Convention.

In order to overcome the rather frequent skepticism about the ECtHR’s hyper-activism, the CC proposes a new understanding of how the Convention’s interpretation evolves. It says that, instead of being the fruit only of the ECtHR’s creativity and authoritativeness, the word that prevails in interpreting the Convention is not necessarily the one spoken by the Grand Chamber, but the one that emerges as the wisest after a debate has taken place among both Council of Europe and state institutions. It springs out of dialogue and cooperation, instead of legal and juridical hierarchy. According to the CC, the ECtHR has a role in serving Conventional rights, but it is not alone. And, if the CC’s interpretative proposal is confirmed by more Constitutional and Supreme Courts, the ECtHR’s monopoly over the interpretation of the Convention has little life left.

Suggested Citation, Andrea Pin, A Jurisprudence to Handle with Care: The European Court of Human Rights’ Unsettled Case Law, its Authority, and its Future, According to the Italian Constitutional Court, Int’l J. Const. L. Blog, May 1, 2015, at: http://www.iconnectblog.com/2015/04/mini-symposium-on-cc-judgment-49-2015

A National Narrative: The Constitution’s Axiological Prevalence on the ECHR–A Comment on the Italian Constitutional Court Judgment No. 49/2015

On 26 March 2015, in judgment no. 49,[1] the Italian Constitutional Court (hereinafter CC) went further than ever before in fencing the national legal system off from the influence of the European Convention on Human Rights (hereinafter ECHR), by both laying down a list of conditions which the European Court of Human Rights (hereinafter ECtHR) ruling must fulfill before it can be used to challenge a national law, and charging the ordinary courts with the task of controlling compliance with the items in the list before referring a law to the CC.

In the opinion of the CC, the referring court in the case before it had given an exceedingly simplistic reading to the ECtHR judgment in the Varvara case (Varvara v. Italy, 29 October 2013, application no. 17475/2009). In the Varvara case, the ECtHR had found that Article 7 ECHR (nulla poena sine lege) had been breached. The claims originated from the confiscation, ordered by a court of appeal, of land and buildings that had been developed unlawfully, in spite of the fact that criminal proceedings had been discontinued on the grounds that prosecution of the offence was time-barred.

According to the CC, the referring court should have construed the Varvara judgment within the «continuing stream of European case-law», and with reference to the constitutional principles of subsidiarity in criminal matters and legislative discretion in relation to punishment policy. In a closely argued judgment, the CC reminded the referring court that

The European Court does not establish the meaning of national law but only controls whether or not, as enforced, it infringes the ECHR in cases in which an application has been made;

The ordinary courts should interpret national law in accordance with the ECHR; and

Nevertheless, the ordinary courts must first of all interpret national law in accordance with the Italian Constitution, which has an axiological prevalence on the ECHR.

In particular, for the first time, the CC enumerated the situations in which the ordinary courts may be bound by a Strasbourg ruling. Those situations may be described as follows:

When the ruling concerns a specific individual dispute remitted to the national court;

When a line of Strasbourg case-law is «well-established»; and

When the ruling is a pilot judgment.

The CC also confirmed that a judgment by the ECtHR is not binding if it–and, therefore, the Italian law enforcing the ECHR, inasmuch as it also enforces the judgment in question–is not compatible with the Italian Constitution in the opinion of the CC, which is the only body empowered to reach such a conclusion.

The judgment of the Grand Chamber on three similar cases against Italy (G.I.E.M s.r.l, application no. 1828/06, Hotel Promotion Bureau s.r.l. and Rita Sarda s.r.l., application no. 34163/07 and Falgest s.r.l. and Gironda, application no. 19029/11) is expected in few months.[2]

In my view, this decision could greatly help the Grand Chamber due to its explanation of the scope and legal content of the confiscation of land in reaction to unlawful developments. The outcome could be a new Horncastle case, with the Constitutional Court in the same position as the UK Supreme Court in 2009[3].

And yet, at the same time, judgment no. 49/2015 reflects the CC’s arrogant attitude towards the Strasbourg Court and its case-law, which may be excessively defensive or even dangerous. It asks too much of the ordinary courts, as not all courts have a deep insight into ECtHR case law nor knowledge of its official languages, and it might push the CC away from fundamental rights issues, leaving these to ordinary and international courts whose main task is not to guarantee the correct interpretation and application of the Constitution.

[2] The Italian Constitutional Court has followed the suggestion made by the former President of the Strasbourg Court, Sir Nicolas Bratza, see N. Bratza, The relationship between the UK courts and Strasbourg, European Human Rights Review, 2011, 505 et seq. The President suggested that when national courts distance themselves from ECtHR’s case-law, they should explain their reasoning clearly, giving the ECtHR the opportunity to reconsider its position pro futuro.

The Horncastle case raised the question whether there could be a fair trial when a defendant was prosecuted based on evidence given by witnesses who subsequently did not attend the trial in person and therefore were not available to be cross-examined by the defendant. When hearing the applicants’ appeal, the UK Supreme Court examined Al-Khawaja and Tahery and invited the Grand Chamber to accept a request to rehear the case. The subsequent Grand Chamber judgment in Al-Khawaja and Tahery v. the United Kingdom [15 December 2011] agreed with the Supreme Court that the “sole or decisive rule” should not be applied inflexibly. The ECtHR reiterated the principles established in its Grand Chamber judgment in Al-Khawaja and Tahery v. the United Kingdom more recently in Horncastle and Others v. the United Kingdom [16 December 2014].

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